Posted on March 26, 2020

The Un-American

Saul Elbein, New Republic, March 23, 2020

In late 2014, a young woman named Hoda Muthana slipped away from her Alabama home to travel to Syria as one more volunteer for the Islamic State. Over the ensuing years, her parents, Ahmed Ali and Sadiqa, experienced the rise and fall of the caliphate through their daughter’s WhatsApp messages, which morphed from semi-reassuring updates on her whereabouts to terrifying statements of ideological passion. She pleaded for her parents, who were from Yemen, to join her in Raqqa: “You and Mom have to come, we’ll all die here together and go straight to jannah,” to heaven. On Twitter, she posted for her international following under the name Umm Jihad—the Mother of Jihad—inciting her readers to drive vans into crowds, among other acts of war. American troops, she wrote, “cry for their lives while we cry for our death.”

For the first couple of years she was gone, Hoda appeared content with her chosen life, and strenuously resisted her father’s pleas to surrender to the United States. But throughout 2017 and 2018, ISIS was crumbling under the concurrent assaults of Kurds, Americans, Turks, Iranians, and Russians, and she started to realize she had made a terrible mistake. {snip} She grew more afraid of dying in exile than facing trial back home, concerned not only for herself but also for her infant son, her child with a Tunisian ISIS recruit. Whatever happened to her, she told her father, she wanted the boy to have a life.

The trouble was that getting out was as dangerous as staying. Flight was punishable by death. Ahmed Ali feared she would fall into the hands of Syrians, Turks, or Russians—which meant, at absolute best, imprisonment by authorities who answered to nobody in particular and wouldn’t care that Hoda was an American citizen. To the south, Iraq had sentenced thousands to death—including European nationals—on even the vague suspicion of ISIS membership. So Ahmed Ali tried to get his daughter into American hands. Together with Charles Swift, a lawyer from the Constitutional Law Center for Muslims in America, he negotiated with the FBI to be prepared to receive her if she made it into allied territory. Meanwhile, he and Swift texted Hoda maps indicating the locations of approaching American and Kurdish forces.

During each of Hoda’s attempts to escape, she left her phone behind so as to avoid being caught with incriminating evidence. Twice she was apprehended; both times, she evaded punishment by convincing the guards she was looking for food. Finally Swift, a former Navy lawyer, texted her: “When the guard post disappears from the lines … that means the opposition is close. They will start worrying about themselves and stop worrying about you.” Then, he told her, walk toward the sounds of cannons.

In late 2018, as Iraqi forces closed in on the village of Sousa, Hoda set off across the desert with her son. The Muthanas waited two nerve-wracking, helpless days, until Ahmed Ali’s phone buzzed with an unknown number: Hoda had been picked up by a unit of the independent Kurdish soldiers called peshmerga. Swift expected she would make a quick return home and get a plea bargain—an outcome that would put an end to the Muthana family’s limbo, if not to Hoda’s difficulties. The lawyer knew Hoda would face interrogation and prosecution when she returned to the United States, but he had no doubt that she would be able to return. He had spent more than 15 years defending people on the fringes of the war on terrorism. He was a counsel on the Supreme Court case that had successfully argued that the Bush administration’s military commissions for trying Guantánamo detainees were unconstitutional. He had won an acquittal for Noor Salman, the widow of Pulse nightclub shooter Omar Mateen.

Over the course of this work, he had negotiated the surrender to the FBI of a half-dozen ISIS recruits. Based on his experience in those cases, he assumed that the FBI would be eager to pick Hoda up. “They usually take about 20 minutes to respond to an offer of surrender,” he told me. Not this time. After she was apprehended, days stretched into weeks and then months, with no word from the agency. Hoda waited with her child in a tent in the Al-Hol detention camp in northeastern Syria, along with other Western women whose governments suddenly seemed to have no interest in them.

In early 2019, a group of Western journalists covering the caliphate’s final collapse found and interviewed her. “We had young people not knowing much about their religion—we interpreted everything very wrong,” Hoda told ABC News’ James Longman, her striking face framed by a hijab and accented by the eye shadow of bone-deep fatigue. “I can’t even believe I thought that, really.… I’m just a normal human being who has been manipulated once and hopefully never again.” She knew, she told the reporter, that she faced prison. “I hope America doesn’t think I’m a threat to them, and they can accept me.”

Whatever America thought, the day after ABC published the interview, President Trump tweeted his own decisive verdict. “I have instructed Secretary of State Mike Pompeo, and he fully agrees, not to allow Hoda Muthana back into the Country!” the president wrote. The reason, as Pompeo explained in a statement the same day, was that Hoda—despite having been born in Hackensack, New Jersey, and going off to Syria on a U.S. passport—was “not a U.S. citizen.”


From one perspective, the State Department’s move against Hoda was something bold and new: A U.S. president was flagrantly expanding the role of executive power, baldly asserting the right to personally decide, with no due process or hearing, that a woman born in the United States wasn’t an American citizen. And yet, if you look at what administrations do, as opposed to how they do it—or how they justify it—Trump could plausibly cite nearly two decades of federal precedent behind him. Indeed, in challenging Hoda Muthana’s claim of birthright citizenship, Trump was largely building on President Barack Obama’s legacy.

Obama had enabled the federal government to seize hitherto unimagined powers in the global war on terrorism. On the home front, the FBI—which previously had little to do with counterterrorism efforts—infiltrated mosques and chat rooms, set up fake terrorism plots, and arrested those ensnared in the schemes. In 2009, in “the largest terrorism financing case in American history,” a Dallas federal court sentenced the five heads of the Holy Land Foundation, an Islamic charity, to as many as 65 years apiece in federal prison for sending money to Hamas for schools and food—even though the government conceded that was precisely what Hamas had used the money for. Executive-branch drone operators killed, openly and at will, in wars spreading in concentric circles outward from Iraq. In 2011, a drone assault killed New Mexico-born imam Anwar al-Awlaki, a mellifluous preacher known for his articulate and increasingly violent online sermons, along with Samir Khan, the young American who reportedly published Inspire, the Al Qaeda magazine. Two weeks later, another CIA drone blew up al-Awlaki’s 16-year-old, Denver-born son.

The strike on al-Awlaki showed the American presidency, in a sense, at its dark apogee: Obama now asserted the power to kill individuals anywhere, at any time, with rockets from the sky. {snip}


Trump’s tweet was not the first time Hoda’s citizenship had been challenged. In early 2016, Ahmed Ali received a letter from the Obama State Department informing him that his daughter was not and had never been a citizen. He assumed it was a mistake. For eight years, the Obama administration had pursued a set of hard-line immigration measures, from an unprecedented program of deportation of naturalized citizens (Operation Janus) to the unauthorized delay and deferment of naturalization applications submitted by South Asians, Muslims, and Middle Easterners (the infamous Controlled Application Review and Resolution Program, or CARRP). But none of these efforts, Ahmed Ali believed, were relevant to Hoda, because she had been born in America and traveled abroad on an American passport. He sent back proof of her birthplace and heard no more about it.

The underlying logic of Trump’s claim that Hoda was not a citizen was essentially the same as the rationale in the 2016 letter. The evidence cited in the court case was extremely specific, resting on Ahmed Ali’s employment history. Until 1994, the year Hoda was born, Ahmed Ali had been among Yemen’s envoys to the U.N.; the standard trade-off that foreign workers like him made in exchange for diplomatic immunity was that their children weren’t eligible for birthright citizenship.

But before Hoda was born, as South Yemen disintegrated in war and forced union with the North, the new regime fired him—thereby restoring that right. Later, in court, the U.S. government argued it hadn’t found out about Ahmed Ali’s status until after Hoda’s birth. Therefore, the government found the prior agreement to still be in force—meaning Hoda was not, it argued, a citizen.

What’s more telling than the chronological particulars informing the Muthana prosecution was that in 2016, the State Department lawyers didn’t even bother to make this case. The letter to the Muthanas disputing their daughter’s claim to citizenship took for granted that it was simply the right of the executive branch to decide, without any hearing, due process, or trial, that a woman born in the United States, the recipient of two U.S. passports, wasn’t a U.S. citizen. For Swift, this maneuver was of a piece with his prior duels with the Obama administration over the rights of people accused of terrorism. It was evidence of an extraordinarily expansive power grab that, because it never declared itself as such, was almost impossible to fight in court. In both the Bush and Obama White Houses, Swift recalled, “the goal on the other side was ‘always avoid judicial review’”—i.e., to refrain from ever laying out the administration’s goals openly such that they could be challenged in court.

It’s unconstitutional to bar entry to U.S. citizens or to strip them of their citizenship based on conduct. Even a crime as blatantly treasonous as killing the president, noted David Cole, the national legal director of the American Civil Liberties Union, might make a citizen subject to the death penalty, but not loss of citizenship. But in Hoda’s case, Swift said, there was no way to prove the intention behind the State Department’s refusal to let her return. The government could insist that her citizenship status was an administrative matter easily cleared up if only she could get to the United States—on a passport that the State Department wouldn’t renew.

“So now she’s a presumptive alien,” Swift explained grimly. “She has no standing in U.S. court.” This sort of tactic, a banishment that never announces itself as such, was, he said, “a fundamental expansion of Guantánamo”—that is to say, the legal dead zone in which the U.S. president could exercise the broadest range of unilateral, unaccountable power. {snip}

So when Trump tweeted that Hoda could not return—and when Pompeo followed up with a statement connecting her citizenship status to her identity as a “terrorist”—they shone a light directly through the fog of executive privilege. The long-concealed imperatives of executive impunity in the terror wars had burst into the open.

But Swift’s optimism about the opportunity offered by Hoda’s case met a stark obstacle in the judge presiding over it. In November 2019, Judge Reggie Walton ruled in favor of the State Department: Hoda was not a citizen. Walton did not question the department’s internal deliberations; he simply deferred to them—something no court had ever done in a case of revoking citizenship. The government had insisted that Ahmed Ali Muthana had no standing; that there was nothing to sue over; that in 2016 Hoda should have requested a hearing within 60 days of getting the letter disputing her citizenship.

This line of argument was dry and technical, but amicus filings indicate the larger stakes of the case. A brief from the right-wing Center for Constitutional Jurisprudence argued that birthright citizenship required not only birth in the United States, but also being “subject to its jurisdiction.” According to the CCJ, the Muthanas had been merely “temporary sojourners” when Hoda was born.

It’s not hard to divine just where an argument like this is headed in the Trump era. Indeed, Trump, in the wake of regulations last August that allowed the government to hold undocumented children and their families “indefinitely,” told a group of reporters that birthright citizenship was “frankly ridiculous,” and that his administration was seeking options to end it. (A federal judge later rejected the regulations.) At the end of February, the Department of Justice announced the creation of a section devoted expressly to revoking the naturalization of citizens it deems “fraudsters,” including “terrorists, war criminals, [and] sex offenders.”


{snip} Even if Swift were to win in court, Hoda would still likely spend years in federal prison, and her child would be raised by the Muthanas. That’s the best-case scenario for the small family. If the Trump administration has its way, Hoda will remain in a detention camp, and her son will grow up stateless in a warming, darkening world—a frustrated kid with no prospects, raised by an embittered mother in a dead-end refugee camp. {snip}